Lida Build Pty Ltd v Miller and Anor
[2011] QCATA 219
•9 August 2011
| CITATION: | Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219 |
| PARTIES: | Lida Build Pty Ltd |
| Susan Miller and Peter Miller (Applicants/Appellants) v Lida Build Pty Ltd (Respondent) |
APPLICATION NUMBER: APL218-10
APL240-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Michelle Howard, Member |
DELIVERED ON: 9 August 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. On the appeal of Lida Build, the appeal is allowed but only to the following extent:
(a) That the amount allowed for electrical variations of $11,302.91 be set aside and the amount of $12,433.21 be substituted;
(b) That the decision of the Tribunal about the date for practical completion, delay costs, and late completion damages be set aside and those issues returned to the Tribunal for reconsideration according to law;
(c) That the claim by Lida Build for interest under the contract is returned to the Tribunal for reconsideration and the Tribunal is directed to hear further evidence to allow it to calculate interest owing on monies owing under the contract;
(d) That the claim by Lida Build for costs under the contract is referred back to the Tribunal for reconsideration and the Tribunal is directed to hear further evidence to allow it to calculate costs referrable to recovery of monies owing under the contract;
(e) That the claim by Lida Build for costs by way of the filing fee of the application is referred back to the Tribunal for reconsideration and the Tribunal is directed to determine the claim.
2. On the appeal of Susan Miller and Peter Miller, the appeal is allowed but only to the following extent:
(a)(i) That the Tribunal’s orders dismissing the claims for diminution of value and rectification relating to the roof pitch be set aside and that the Tribunal reconsider those claims;
(ii) The Tribunal is directed to determine, in accordance with the evidence, that the roof pitch of the existing house is 25 degrees and the roof pitch of the pool house is 30 degrees, whether the contract required the roof pitch to match the roof pitch of the existing house; and, whether an amount should be awarded on the Millers counter-claim for rectification of the pool house roof or diminution in value;
(b) That the claims for shuttering of $3,500, fitting door furniture of $225.50 and paint of $139.71 are allowed;
(c) That the amount allowed for rectification of minor defects of $792 is set aside and the amount of 1267.50 ($792 plus $475.50) is substituted for it;
(d) That the amount allowed for the rectification of the fascia of $880 is set aside and returned to the Tribunal for reconsideration of this issue when determining the claims specified in 2(a) of these orders;
(e) That the decision of the Tribunal about the date for practical completion, delay costs, and late completion damages be set aside and those issues returned to the Tribunal for reconsideration according to law.
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – BUILDING MATTER – where the applicant applied to the Tribunal for monies allegedly owed to it after the construction of a pool house and other ancillary works for the respondents – where the respondents counterclaimed seeking damages for defective works, diminution of value and late completion – where the Tribunal at first instance ordered the respondents to pay the applicant $38,907.31 ($47,479.31 set off against the amount of $8,572.00 allowed for the counterclaim) – where both parties seek leave to appeal that decision on the grounds that the Tribunal made various errors of fact and law – whether leave to appeal should be granted Domestic Building Contracts Act 2000, s 84 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, cited |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard and determined on the papers in the absence of the parties pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
President:
In this matter the Appeal Tribunal was composed of Member Michelle Howard, and me. I have had the advantage of reading the reasons of the Member in draft. I agree with her reasons, and her conclusions, and the orders she proposes.
Member Michelle Howard:
Lida Build Pty Ltd applied to the Tribunal for orders for monies allegedly owed to it, arising out of a contract with Susan and Peter Miller dated 7 October 2008 for the construction of a pool house and ancillary works. The claim pursued at hearing totalled $58,157.05.
The Millers made a counterclaim relating to damages for defective works and diminution of value, late completion damages and damages to their property which totalled $72,521.15.
The Tribunal made orders that the Millers pay Lida Build a total sum of $38,907.31. This sum was comprised of an amount of $47,479.31 allowed on Lida Build’s claim, set off against an amount allowed on the Millers’ counterclaim of $8,572.00.
Both Lida Build and the Millers have filed applications for leave to appeal or appeal the decision of the Tribunal. Both parties have provided extensive written submissions in support of their applications.
The Legal Considerations for Appeals in QCAT
A party may appeal on a question of law without the Appeal Tribunal’s leave, unless the decision falls into certain limited categories which do not apply in this proceeding.[1] A party may generally appeal to the Appeal Tribunal on a question of fact, or a question of mixed law and fact, only if the Appeal Tribunal gives leave to appeal.[2]
[1] Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142.
[2] QCAT Act, s 142.
Finality in litigation is highly desirable because any further action beyond the hearing can be costly, and unnecessarily burdensome on the parties.[3] A finding of fact will generally not be disturbed on appeal if the evidence before the Tribunal supports the inferences drawn and the facts found.[4] It is not the Appeal Tribunal’s task to decide where the truth lay as between the competing versions given by the parties.[5]
[3] See Fox v Percy (2003) 214 CLR 118, 128 per Gleeson CJ, Kirby and Gummow JJ.
[4] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 per Mason CJ.
[5] Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.
Whether a decision is based on findings of fact which are open on the available evidence, is a question of law.[6] The appeal jurisdiction is not generally the proper forum to receive evidence on disputed facts.[7]
[6]Kostas v HIA Insurance Services Pty Ltd t/a Home Owners Warranty (2010) 241 CLR 390.
[7]See discussion in Georgalis v Andoras (1993) 113 FLR 196; Doherty v Liverpool District Hospital (1991) 22 NSWLR 284.
Leave to appeal will ordinarily only be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage;[8] there is a reasonably arguable case that the primary decision-maker made an error[9] and there are reasonable prospects that the applicant would be granted orders in its favour;[10] or to correct a substantial injustice to the applicant caused by error.[11]
[8]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580.
[9] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[10] Cachia v Grech [2009] NSWCA 232, [13].
[11] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
The statutory regime under which the Queensland Civil and Administrative Tribunal operates places obligations upon parties themselves: to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’.[12]
[12]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
In the context of an appeal, a party has an obligation to present an identifiable argument that an error has been made by the Tribunal in reaching its decision. It must be more than mere disagreement with the Tribunal’s findings on a contested issue.
As the discussion above suggests, the primary function of the Appeal Tribunal is to correct errors made by the Tribunal. It is not to allow an applicant to have a second opportunity to present or argue their case in the hope that the Appeal Tribunal will consider the evidence differently, and the party will achieve a different result on the issues appealed.
Grounds of Appeal for Lida Build
Lida Build suggests that the Tribunal made four errors of fact or law. Each of these grounds is considered separately.
The first assertion is that the Tribunal erred in finding that Lida Build was not entitled to reasonable profit on its electrical variations, pursuant to the Domestic Building Contracts Act 2000.
The Tribunal allowed electrical variations in the amount of $11,302.90 ($10,275.38 plus GST of $1,027.53) after finding that Lida Build would suffer unreasonable hardship if unable to recover these amounts pursuant to s 84(4) of the Domestic Building Contracts Act 2000 (the DBC Act). The Tribunal excluded a builder’s margin of 20% claimed by Lida Build.
The Tribunal acknowledged that the claim for builder’s margin was based upon clause 20.7 in the contract, which provided for a 20% margin but the Presiding Member decided that, as the builder had failed to comply with the requirements of the DBC Act, he should exercise his discretion under a hardship provision and he held that the margin was not justified in the circumstances.
Lida Build submits that, having regard to s 84(6) of the DBC Act, the Tribunal erred in reaching this conclusion. It argues that a builder’s margin of 15% should be added to the $10,275.38 allowed, plus GST.
The Millers say that this claim is unrealistic and should be dismissed. They do not comment specifically upon the submission for a 15% margin.
Section 84(6) of the DBC Act provides that if a building contractor is entitled to recover an amount for a variation of a fixed price contract, the amount is either the amount worked out in the appropriate variation document or, if that does not apply, the costs of carrying out the variation plus a reasonable profit. Section 84(7) then makes provision for the amount to be recovered if the contract is a cost plus contract.
The contract between the parties was a fixed price contract. Section 84(6) is specific about the entitlement to recover. The first limb of s 84(6) does not apply, but the second limb does. It provides that the cost of the variation, and a reasonable profit, are recoverable.
Accordingly, the Tribunal erred in law by finding that a builder’s margin could not be justified. It was required, having made the findings it did, to allow a reasonable profit. The contract had provided for a 20% margin. On appeal a 15% margin is sought. This represents a 5% reduction on the amount that would have been recoverable under the contract had the variations been documented as required. Those factors warrant an award of 10% a reasonable profit margin in all of the circumstances.
I calculate the amount to be paid for electrical variations as follows:
Amount allowed by Tribunal $10, 275.38
Builder’s margin of 10% $ 1,027.54
GST $ 1,130.29
The total allowed should, therefore, be $12,433.21. I would set aside the amount allowed by the Tribunal, and substitute this sum.
Secondly, Lida Build asserts that the Tribunal erred in finding that it was only entitled to claim an extension of time for the date of practical completion to 4 February 2009.
The parties’ appeals both raise the issue of the Tribunal’s calculation of the extension of time and consequent calculation of delay costs and late completion damages. For convenience, all of the issues raised by both of them regarding this issue in both appeals are dealt with under this heading.
The Tribunal considered the time for practical completion under the contract in paragraphs 51-54 and 72-73 of its reasons for decision. The contract specified completion 45 days from an agreed commencement date of 20 October 2008. The Tribunal allowed an extension until 4 February 2009 for practical completion. From its reasons, it appears that it allowed the following extensions:
Wet weather 8 days
Electrical variations in November and December 4 days
Interference by the Millers October, November and December 5 days
Roof rectification in December 3 days
Christmas shutdown 24 December to 19 January 17 days
The Tribunal indicated in paragraph 52 that these were the additional days claimed by Lida Build. However, the learned Member did not explain the basis on which he decided to accept those extensions.
The Tribunal allowed delay costs in favour of Lida Build for 7 days associated with the variations, and 5 days for delays associated with the interference at a rate of $52.25 per day, totalling $627.
The Tribunal found in paragraph 72 that practical completion was achieved on 22 June 2009. The Tribunal calculated that Lida Build was responsible to the Millers for late completion damages for the period from 4 February to 22 June at a rate of $50 per day in the sum of $6,900.
In paragraph 73 of its reasons the Tribunal acknowledged that the Millers applied to Brisbane City Council in March 2009 for a third water metre to connect the pool house but approval and connection did not occur until early June, which delayed the plumber from completing his works on the project and contributed to Lida Build completing the project on 22 June 2009. However, the Tribunal considered that because the delay occurred after the extended completion date of 4 February, no deduction should be made from the penalties for late completion.
Lida Build submits that it claimed a total of 140 days extension of time, as follows:
Delays associated with variations requested by the respondents 10 days
(electrical variations 4 days; tiling variations 3 days; roof rectification 3 days)
Delays for no water supply -57 working days- 81 days
(regarding the connection of a third water metre)
Delays associated with interference by the Millers 5 days
Delays associated with supply of correct sanitary items 6 days
Inclement weather 9 days
(it says it rained on days including November 8 days; January 1 day; February 3 days including on 3rd February)
Public Holidays 8 days
(November 2008 to June 2009)
Christmas break 21 days
Lida Build submits that the Tribunal’s calculations of dates do not add up, and that the Tribunal appears to have allowed the following claimed delays in determining the extension to 4 February:
1 working day for inclement weather on 23 January
1 working day for public holiday on 26 January
3 working days for tiling variations
1 working day for inclement weather on 3 February
It submits that adding these days brings the date for completion to 4 February 2009.
Lida Build submits that it is entitled to an extension of time for the delays attributable to the Millers’ requirements for the connection of the third water metre (although it arose after the extended date for practical completion) for the period from 23 March 2009 when Mr Miller requested the additional water metre until it was installed on 9 June 2009. This delay of 81 days, including 57 working days, meant that water could not be supplied to the bathroom in the pool house until the water metre was installed, following which bathroom fixtures could be installed. This resulted, Lida Build says, in preventing practical completion until 19 June 2009.
Further, Lida Build submits that it is entitled to a delay of 6 days, including 4 working days, for the late supply by the Millers of correct sanitary items from 11 June to 16 June 2009. It argues that the Millers were responsible under the contract to supply the items but incompatible items were supplied and the Millers had to select and supply another water closet suite. The plumber was on site on 11 June to install, but had to wait until 16 June.
Lida Build asserts that the Tribunal Member, although he did not refer to this in the reasons, told the parties that Lida Build was not entitled to this delay because it occurred after the revised date for practical completion. Once again, Lida Build argues that it was entitled to credit for the delay.
Hence, Lida Build submits that it ought to have been allowed an additional 61 working days associated with delays caused by the Millers. It submits that the Tribunal erred in law in deciding otherwise.
In support of its submissions, Lida Build relies upon the prevention principle discussed in Peak Constructions (Liverpool) v McKenney Foundations Limited.[13]Essentially, it argues that the prevention principle establishes that a principal may lose the right to liquidated damages when it has contributed to or caused the contractor’s delay. It argues that the principle has found support in Australia.[14]
[13] (1970) 69 LGR 1.
[14]SMK Cabinets v Hili Modern Electrics Pty Ltd [1984] VR 391; Turner Corporation Pty Ltd) Receiver & Manager Appointed) v Austotel Pty Ltd (1992) 27 NSWLR 592; Gaymark Investments Pty Ltd v Walter Construction Group Ltd (1999) 16 BCL 449.
Further, and in the alternative, Lida Build submits that the contract contained an extension clause which entitled it to an extension for delays caused by the Millers. Clause 17.1 of the contract provides that Lida Build is entitled to a reasonable extension of time if the carrying out of the works is delayed by a claimable delay. Claimable delays include, in clause 17.2, delays which are not solely caused by the contractor which were not reasonably foreseeable at the time of entering the contract including by anything done or not done by the owner.
By virtue of clause 17.3 the contractor is required to give written notice of the extension to the homeowner detailing the cause of the delay and the extension of time occurring by the later of 20 days after becoming aware of both the cause of the delay and the extent of the delay, or 5 days on or before the date of practical completion. Practical completion is defined in the contract. Lida Build submitted an extension of time claim on 12 June 2009, and asserts that it therefore complied with the notice requirements.
The Millers also disagree with the Tribunal’s calculation of the extension of time. They argue that an extension should be allowed for only eight days, for wet weather. They dispute the 4 day extension allowed for the electrical variations because the variations themselves are contested by them and because, they say, there is no evidence that any such variations took place before the revised completion date. They also dispute the 3 days allowed for roof rectification because the monetary claim for rectification was withdrawn; and, they dispute the Christmas shutdown time because, on their case, practical completion was due before the shutdown began. They also dispute the 5 days allowed for alleged interference by them.
They say the 8 days of public holidays, as well as the Christmas break, were after the date for practical completion. Regarding the 5 working days for interference the Millers variously contend that any alleged interference occurred after the revised completion date, or that there is no evidence to support the claims. They submit that there should be no allowance for delay costs to Lida Build, when $627 was allowed by the Member. Conversely, they claim an increase in late completion damages to the Millers by 50 days or $2,500.
Regarding the 81 days claimed because of no water supply, they contend that the plumber who was a subcontractor of Lida Build suggested the installation of the third water metre and that, therefore, it should have been considered in the planning of the job, but in any event that it was not their fault. In relation to the six days claimed because of the toilet, they assert again that it was the fault of Lida Build’s subcontracted plumber for failing to obtain the exchanged toilet in the required time frame.
In relation to the point raised on appeal by Lida Build that it was entitled to rely on the prevention principle in regard to the delays claimed after the extended date for practical completion, the Millers dispute that they caused any delay. Accordingly, the Millers contend that the prevention principle does not apply.
The prevention principle is grounded in ‘considerations of fairness and reasonableness’.[15] It operates where a proprietor is responsible, wholly or partly, for a contractor[16] being rendered unable to complete the works by the date of practical completion. It operates to render time at large, and the obligation to complete by a particular date is replaced by an implied obligation to complete within a reasonable time. The right to liquidated damages is lost (because it depends upon the existence of an express completion date) unless the contractor either agrees to complete by the due date irrespective of the delay, or there is provision in the contract for extension of the date for practical completion.[17]
[15] SMK Cabinets v Hili Modern Electrics Pty Ltd [1984] VR 391, 397.
[16] Mort’s Dock & Engineering Co Ltd v Wadey (1905) 22 TLR 61.
[17] Peak Constructions (Liverpool) v McKenney Foundations Limited (1970) 69 LGR 1.
If time for completion has already passed when the proprietor’s act or omission occurs so that liquidated damages were already accruing, those already accrued are unaffected; but the right to recover or retain liquidated damages is lost from the time of the act or omission.[18] However, a builder who has contractual rights to extend the date for completion which he fails to exercise has, in some circumstances, been held to be unable to rely upon the prevention principle because the act of the proprietor does not stop the performance of contractual obligations; instead, it entitles the builder to an extension of time.[19]
[18] SMK Cabinets v Hili Modern Electrics Pty Ltd [1984] VR 391.
[19]Turner Corporation Limited (Receiver and Manager Appointed) v Austotel Pty Limited (1994) 13 BCL 378.
If clause 17 applies then delays occasioned through a cause beyond the contractor’s sole control which were not reasonably foreseeable at the time the parties entered into the contract, including any acts done by the owner or delay in supply of materials supplied by the owner, entitle Lida Build to an extension if it complied with the requirements of the clause. It says it has done so. The Millers say in essence that the lengthy delay relating to the third water metre and the supply of the water closet pan were the fault of Lida Build’s subcontractor. They have raised various arguments about the other periods claimed.
Clause 17 contemplates, in 17.3, that notice will be given at latest 5 days before the date for practical completion. The date for practical completion is the date provided for in the contract before any extension of time, or any extended date for completion allowed in accordance with the clause.
Properly construed, in its terms, the clause does not contemplate extensions claimed arising from events which occurred after the date for practical completion as originally agreed by the parties, or as extended under the clause before the date for practical completion has passed. Lida Build had contractual rights which it could have exercised to extend time as a result of the delays which occurred. It appears it did not do so.
In relation to the vast majority of the days for extensions claimed relating to the acts of omissions of the Millers concerning the third water metre, and the water closet, the date for practical completion had passed: hence, Lida Build cannot rely upon clause 17.
The question whether the prevention principle may apply arises, then, for consideration. It might be the case that, in relation to small overruns of time, a builder does not take the step of extending time under a contract. Should he then be disentitled from relying upon the common law prevention principle if on the facts as found, the subsequent acts or omissions of the homeowners caused significant overruns for which they claim liquidated damages? It seems to me that, in such circumstances, reliance would be allowed under the common law: the principle is concerned, in essence, with ensuring that parties have clean hands when seeking to enforce their contractual rights.
On the facts as found, is Lida Build entitled to rely upon the prevention principle for the delays contested by the Millers relating to the third water metre and water closet pan? The Millers say, in effect, that Lida Build’s plumbing contractor was responsible for the lengthy delays relating to the third water metre and the late supply of the water closet. Some findings were made by the Tribunal regarding the relationship between the Millers and the plumber in paragraphs 74 to 78. In particular, it was found that he was employed at the Millers request because of their prior dealings with him.
The Tribunal also found that this had resulted in points of dispute between the parties, and that Mr Miller advised the plumber that there was an agreement between the Millers and Lida Build that he invoice the Millers directly, which Lida Build denied. The learned Member did not, however, make findings about whether Lida Build or the Millers were responsible for the delays associated with the third water metre or the late supply of the water closet.
Regarding the other extensions sought by Lida Build, the Tribunal did not make findings to support its conclusion that an extension should be allowed. It allowed some extensions without saying why, and did not mention others that were sought, but apparently extended the date for practical completion to 4 February 2009. The Tribunal did not consider the effect of s 17 of the contract. The Tribunal calculated delay costs and liquidated damages in accordance with its consideration.
In the circumstances it is apparent that the Tribunal has, with respect, made an error of law in determining the extension issue, and the calculation of delay costs and liquidated damages, and also failed to expose a rational explanation for its decision. This constitutes an error of law. In the absence of findings of fact underlying the determination about the extension issue, this Appeal Tribunal is unable to determine the issues of contested fact and perform any recalculations of the delay costs and liquidated damages that may be required.
In the circumstances these issues must go back to the Tribunal for reconsideration and determination according to law. I would allow both appeals on this issue and make orders referring the issues back to the Tribunal.
The Tribunal erred by failing to determine Lida Build’s claim for interest.
The Tribunal decision refers, in paragraph 2, to Lida Build’s claim for interest. However, the reasons do not otherwise address the claim. It only appears from the transcript that the Tribunal Member said that he did not think he needed to hear from Lida Build about interest.
Lida Build submits that the Tribunal had the power to award interest under the Queensland Building Services Authority Act 1991, s 77(2)(c) and regulation 34B of the Queensland Building Services AuthorityRegulation 2003, and clause 33 of the contract, and that it should have been allowed at the default interest rate provided for in the contract, at the rate of 16.09%.
In response, the Millers assert that the Tribunal Member said orally that he would not be awarding interest to either party and then made no award. They also submit that it would be inappropriate to award interest, in essence because of their complaints about the work done by Lida Build. They also allege that, if Lida Build is allowed interest, then they should also be entitled to charge interest. They do not, however, identify a basis for any claim by them and they particularised or made submissions about any interest claim they might make.
A fundamental role of the Tribunal is to decide proceedings before it.[20] Lida Build was entitled to have its claim for interest determined by the Tribunal, and to be given its decision about this claim in writing[21] with reasons.[22] Whatever indications the Tribunal may have given at the hearing about the decision it intended to make with regard to the interest claim, the Tribunal has not given a decision which allows or refuses the claim, nor its reasons for doing so. This is again, with respect, an error of law arising in the Tribunal’s decision-making process. I would allow the appeal in respect of this issue.
[20] QCAT Act, ss 3, 119, 120-128.
[21] QCAT Act, s 121(1).
[22] QCAT Act, s 121(4).
Clause 33 of the contract provides for the payment of interest in the event of default of payment by the Millers. Default interest is defined in clause 38 as ‘the annual rate equal to the Commonwealth Bank overdraft index rate: quarterly charging cycle plus 5%’. Lida Build submits that at the date of their submissions on appeal the Commonwealth Bank overdraft index rate was currently 11.09% and therefore the contract rate was 16.09%.
Lida Build has a contractual entitlement to interest as provided for in clause 33 of the contract. On determination of its application and the counter-claim, it was successful in securing an award to it of a sum of money owing under the contract and for variations. The contract entered into by the parties provides Lida Build an entitlement to interest on amounts owing under the contract. However, variations were allowed by the Tribunal on the basis of unreasonable hardship under the DBC Act, rather than under the contract. The variations could not be allowed under the contract because they were not documented in compliance with the contract, or as required in the usual course under the DBC Act. Interest is not, therefore, payable on the amounts allowed for the variations because they are not owing under the contract.
The interest rate applicable under the contract will have varied from time to time. There is no information before the Appeal Tribunal about any changes. Further, the amount awarded may change after the Tribunal has reconsidered various issues which will also be returned to it as a result of these appeals. Accordingly, because the Appeal Tribunal cannot calculate the interest payable I would return this issue to the Tribunal for reconsideration and direct the hearing of additional evidence about the applicable interest rate from time to time, to enable the calculation of interest. Further, I would direct that interest be allowed in accordance with the contract on the amounts accepted as outstanding under the contract, but not on the variations allowed under the DBC Act for the period from the date of practical completion to the date of the decision on reconsideration.
The Tribunal erred by failing to determine Lida Build’s claim for costs.
The Tribunal notes in paragraph 2 of the reasons that Lida Build claimed costs, but the reasons do not otherwise address the claim for costs, and orders were not made either allowing or refusing the claim.
The transcript reveals that the Tribunal told the parties during the hearing that it did not need to hear from them about costs. The comments made by the learned Member are to the effect that, in QCAT proceedings, both parties meet their own costs unless there are particular reasons to diverge from that position. This suggests, with respect that the learned Member understood that the claim was made by Lida Build pursuant to the QCAT Act. However, as is apparent from the written submissions handed up by Lida Build during the hearing its claim was made for costs pursuant to the contract, and in respect of the filing fee for the application only, pursuant to r 85 of the Queensland Civil and Administrative Tribunal Rules 2009.
A recent decision of Judge Kingham, the Deputy President of QCAT, confirms that the costs provisions of the QCAT Act have been modified by the Queensland Building Services Authority Act 1991 (the QBSA Act) such that this Tribunal exercises a broad, general discretion regarding costs in building disputes which allows it to make such orders for costs as may be required by the relevant circumstances.[23]
[23]Lyons v Dreamstarters Pty Ltd [2011] QCATA 142. By virtue of ss 6(7) and 7(1) of the QCAT Act, the costs provisions in the QCAT Act have been modified by s 77(2)(h) of the QBSA Act.
Lida Build submits that its claim for costs is made pursuant to clause 34 of the contract which obliges the Millers to pay Lida Build any debt collection costs, including legal fees on a solicitor and own client costs basis, associated with recovering or attempting to recover an amount under the contract. It has filed, in its appeal, an affidavit of Darryl Jover which sets out details of costs claimed: $7,830.68 legal fees, and the costs of filing its original application and this appeal of $240 and $550 respectively.
On appeal Lida Build now, in the alternative, claims in reliance on s 102 of the QCAT Act that it is in the interests of justice for orders to be made requiring the Millers to pay its costs.
The Millers argue that Lida Build’s legal costs should not be allowed because its application for leave for legal representation in the Tribunal was refused, and because that decision was also confirmed on appeal. They argue that if the claim is allowed, it should also apply to them. As the Millers point out, Lida Build has sought to introduce new evidence in the appeal about the costs it claims.
Ordinarily, parties must make their case and provide their evidence at hearing. The appeal jurisdiction is not generally the proper forum to receive evidence on disputed facts.[24] Generally, before additional evidence will be admitted it must be shown that the evidence sought to be relied upon at appeal was not available and could not have been obtained with reasonable diligence for use at the hearing; that it is highly probable that if it is admitted there would be a different result; and, that it is credible.[25]
[24]See discussion in Georgalis v Andonaras (1993) 113 FLR 196; Doherty v Liverpool District Hospital (1991) 22 NSWLR 284.
[25] Cicic v Snowy Mountains Hydro-Electric Authority [1964-65] NSWR 178.
As I observed earlier, the fundamental role of the Tribunal is to decide proceedings before it.[26] Lida Build was entitled to have its claim for costs determined by the Tribunal, and to be given its decision about this claim in writing,[27] with reasons.[28] Whatever indications the Tribunal may have given at the hearing about the decision it intended to make about the costs claim, the Tribunal has not given a decision which allows or refuses the claim, nor its reasons for doing so. This is, again, an error of law.
[26] QCAT Act, ss 3, 119, 120-128.
[27] QCAT Act, s 121(1).
[28] QCAT Act, s 121(4).
At the hearing the claim for costs was made (except in relation to the claim for the filing fee) pursuant to the contract, and not under the QCAT Act, although an alternative argument is advanced in the appeal. The Tribunal told the parties that it did not need to hear from them about costs during the hearing. If that had not occurred the basis for the claim may well have been addressed at the hearing (as, it seems, was anticipated by Lida Build’s written submissions).
In the circumstances, although the evidence provided on appeal was available at the time of the hearing, Lida Build was not allowed to support and pursue its claim for costs. I consider that it was entitled to make the claim and to have it determined by the Tribunal.
The evidence provided on appeal about costs does not break down the costs associated with recovery or attempted recovery of monies owing under the contract, and monies owing for the claimed variations. Some variations were allowed at hearing, but not under the contract because it had not been complied with in regard to variations. Accordingly, on the evidence available, it is not currently possible to determine the amount which may be properly owed pursuant to the contract for recovery costs.
I would allow the appeal on this issue and return the claim for recovery costs to the Tribunal for determination. Further, I would direct that the Tribunal hear additional evidence about the costs claimed in order to determine the costs owing under the contract.
The claim for costs by way of the filing fee paid by Lida Build is, in the scheme of things, a minor amount. It is unknown, after the matters allowed on appeal are determined by the Tribunal, whether the Tribunal will make orders against the Millers in favour of Lida Build. However, as there are a variety of other issues to be referred back to the Tribunal for determination this issue should join them.
In the circumstances, it is not necessary for me to consider the alternative claim for costs made on appeal. However, as discussed earlier the appeal process is not the forum for making claims not made at hearing.
Grounds of Appeal for the Millers
The Millers lengthy application for leave to appeal alleges many errors on the part of the Presiding Member. The application is difficult to follow, somewhat convoluted, and confusing. It appears to be an attempt to reargue the Millers case in respect of all factual issues on which the Tribunal found against them, rather than concentrating on errors made.
Lida Build submits that many of the Millers’ grounds of appeal are uncertain and lacking particularity; do not assert any material error; and that, in respect of findings of fact which are challenged, the Tribunal may not properly set aside a finding of fact where it is not satisfied that the Tribunal made an obvious material error (an assertion made in reliance upon the decision of the High Court in Edwards v Noble[29]).
[29] (1971) 125 CLR 296, 304.
The grounds of appeal are explained (as best I can understand them) and discussed under the headings allocated by the Millers, although some of their submissions are apparently unrelated to those headings.
The Contract
Contract Documents
The Millers submit in essence that the Tribunal incorrectly determined that exhibits C-3 and D-2 to Mr Miller’s statement did not form part of the contract. They assert, as best I can understand, that because much of the work referred to in those documents was done, the documents must have been the basis for the work being done.
Lida Build submits that the Tribunal set out, in paragraph 11 of its reasons, the basis for the learned Member’s conclusion why D-2 did not form part of the contract. Regarding C-3, it argues that the Tribunal in paragraph 9 of its reasons referred to the matters in C-3 and noted that the Millers decided not to proceed with it, and it did not form part of the scope of works.
The Tribunal considered the issue raised by the Millers in paragraphs 8 to 11 of the reasons. It does not follow as a matter of logic, as the Millers suggest, that because some of the work referred to in those documents ended up being done then the documents must have formed part of the contract. It is apparent that the Tribunal rejected the Millers’ claims that the two documents concerned formed part of the contract, and the learned Member explained, perhaps somewhat inelegantly, but sufficiently clearly, why it did so. It was entitled on the evidence before it to form the conclusions it did regarding this issue.
Installation of Air-conditioning Unit
The Millers raise the Tribunal’s allowance of a variation for the installation of the air-conditioning unit – inconsistently, they say, with the contract documents. The issue is again raised later by them in relation to electrical variations. The issue, as I understand it, does not relate to the contract documents, but rather to variations. It is addressed later.
Paragraph 15
The Millers refer to a ground of appeal about paragraph 15 of the reasons for decision, claiming that the discussion is irrelevant. Lida Build has not made submissions about this point. An error of fact or law is not identifiable.
Plumbing
The Millers refer to their not having been credited for all of their direct payments to a plumbing contractor. A provisional sum of $4,500 was allowed for plumbing work in the contract. They assert that they have paid the plumber directly a sum of $11,952.10, but have only been credited by Lida Build with $1,297.80. They argue that they should be credited with a further $6,322.50 paid for drainage (inclusive of landscaping) and gas fittings which they argue was not plumbing work. As I understand it, they suggest that although the work was not part of the contract works, Lida Build had a responsibility to do it in essence because buildings are required to be protected from stormwater drainage and, therefore, they should be compensated for it.
The Millers submit that the Tribunal erred in ‘assuming’ that the plumbing contractor was acting de facto as a contractor for them, when they always considered he was working for Lida Build.
Lida Build characterises the issues raised as relating to the Tribunal’s findings about the provisional sum for plumbing work. It argues that the Millers are in effect counter-claiming $6,332.50, although their defence and counter-claim does not refer to it – a claim said, by Lida Build, to be highly prejudicial. Further, Lida Build asserts that there is nothing to suggest that the drainage work and gas-fittings are not plumbing work. The architectural drawings did not show drains and it was not clear what drainage work was required, hence Lida Build’s inclusion of a provisional sum for plumbing. Also, it submits that gas-fittings for the hot water system were not part of the provisional sum and were the Millers responsibility.
The reasons deal with the payments for plumbing in paragraphs 74 to 78. Noting the payments made by the Millers of $11,952.30, and reimbursement to them by Lida Build of $1,297.80 only and a provisional sum of $4,500, the Tribunal found that Lida Build is responsible for the final payment of $3,200 which had not been invoiced by the plumber.
The Tribunal found that the plumber had had prior dealings with the Millers and that he had submitted all of his invoices to them. The learned Member did not assume the plumber’s relationship was with the Millers, as they contend. It made this finding, as it was entitled to do, after hearing evidence about Mr Flynn’s (the plumber) dealings with the parties. The Millers otherwise, it seems, also disagree with the Tribunal’s treatment of the payments for plumbing. However, a party’s disagreement or dissatisfaction with the outcome is not a basis of appeal. I am unable to identify, from the grounds of appeal, any error concerning the Tribunal’s treatment of the plumbing works.
Variations
Electrical Variations
It appears that the Millers dispute all of the electrical variations allowed by the Tribunal. The Tribunal considered the variations in paragraphs 21 to 38, in which it considered the evidence and applicable law.
Aus Air Invoices
The Millers raise, in their grounds of appeal, that Aus Air Electrical invoices included in Lida Build’s variation claim are subsequent to the revised completion date and that there is no evidence to suggest the work was done earlier. This issue is not addressed in the Millers’ submissions. The point as raised, if it is one, does not disclose an identifiable error in the Tribunal’s decision.
Costs of Installation of Air-conditioning Unit
The Millers accept that, as discussed in paragraph 12 of the reasons of decision, they were responsible for the supply of certain items. However, they submit that although they were to supply the items provided for in the contract, installation for the majority of those items was done under the contract, but a claim was made for a variation for the installation of the air-conditioning unit. They say that this ‘inconsistency’ has been supported without apparent reason by the Tribunal’s decision.
Lida Build submits that the tender conditions expressly state that no allowance is made for air-conditioning and argues that, although it did some additional work for which it did not claim variations, this can not disentitle it to properly claiming a variation for this item.
The tender document (DJ-3) not only lists the items allowed for under electrical works, and air-conditioning and/or installation of air-conditioning are not specified as included. It also specifically excludes certain items including air-conditioning. The Tribunal’s reasons for its decision in paragraph 35 refer to the exclusion (although not the inclusions). It is apparent that the learned Member considered the evidence and determined that the variation was appropriate. The ground of appeal does not disclose any error in the decision.
The Other Issues Raised by the Millers About Electrical Variations
The Millers’ grounds of appeal include the following: regarding paragraph 33 of the reasons, the pool equipment under temporary housing with the electrical box was to be relocated to the pool equipment room as part of the contract price; operation and testing of pool lights was not requested and Lida Build’s subcontractor in doing so damaged the lighting system; and an amount was allowed for replacing electrical conduits but the Millers were not informed that the conduits, which the Millers had previously installed, were not deep enough, and they therefore dispute the necessity of this work.
Their submissions refer to an additional issue not included in the grounds, under the heading of pool pump and filters fit-off. The latter will not be addressed in this appeal because it did not form part of the grounds of appeal, as I understand them.
In relation to the remaining items which relate to the pool filter, the operation and testing of pool lights, and rectification of conduits to the pool house the Millers submit in essence that the items do not constitute rectification work based on their view of events, and in the case of the last two items that they would not have authorised the work.
Lida Build argues that the electrical variations allowed did not include a charge for relocation of the electrical box. In relation to the other items, they say the Tribunal’s findings were based on the, in some cases uncontroverted (due to Mrs Miller failing to be available for cross-examination), evidence before it.
The Tribunal considered the relevant claims in paragraphs 33, 34 and 36 of its decision. It appears that the grounds of appeal do no more than restate the Millers case at the hearing. The Tribunal made findings, which it explained sufficiently clearly and which appear consistent with the evidence. The Millers have not identified an error on the Tribunal’s part.
External tiling variations:
The Millers appeal on the grounds that:
(i) Lida Build’s concreting of a pathway to the pool equipment room and to house equipment on the southern side of the pool room and associated tiling, as well as completing tiling of a previously laid and partly tiled area, has resulted in severe ponding of water against the buildings;
(ii) Pursuant to documentation (which the Member declined to accept formed part of the contract documents) additional concreting and tiling including of an area in front of the deck of the main house-the tiling has not been done;
(iii) The Member incorrectly disallowed an amount of $8,375.14 to rectify the tiling and concreting works defectively completed by Lida Build’s subcontractor, which is not disputed by Lida Build;
(iv) The Member incorrectly disallowed the costs of rectification work of $2,622.85 to the slab in front of the deck to the main house which was incorrectly laid and which is not disputed by Lida Build; and
(v) The Member incorrectly accepted the evidence of Mr Jover regarding the performance of external tiling work referred to in and around paragraphs 40-41 of the reasons for decision, relying on the documents which the Tribunal found did not form part of the contract documents.
The Tribunal considered tiling variations in paragraphs 39 to 50 of its reasons for decision. It did not allow an amount for any external tiling variation.
The Miller’s grounds of appeal appear to be, as far as I can discern, that the Tribunal’s reasons for concluding that an amount for tiling variations should not be allowed were incorrect. Once again, the Miller’s grounds and submissions in support appear to do no more than argue the case they made at the hearing.
Although Lida Build disagrees with the Tribunal’s findings, it did not appeal on this point and it submits that the Millers have identified no material error regarding the findings made.
As discussed earlier, the purpose of the appeal process is to correct errors made. In my view, no material error has been identified by the Millers.
Internal and/or Ceramic Tiling Variously Described
The Millers appeal on the ground that they did not accept the tiling of the pool filter room, resulting in an overstatement of amounts accepted by them.
In paragraph 43 of the reasons for decision the learned Member states that the Millers accepted the installation of 9 square metres of tile to the pump room floor and 8 square metres of additional bathroom wall tiling by way of variation to the contract, and accepts Lida Build’s claim in that regard. The amount attributable to the pump room floor tiling is not specified. The total amount was $1,346.40.
The Millers say that they did not accept the installation of the tiles in the pump room. Lida Build claims that the Millers conceded the point at the hearing.
The Tribunal did not decide the point, relying upon a concession made by the Millers. However, it is apparent from the transcript that Mr Miller accepted only that he gave instructions for the work and that he considered it was part of the contract works, not a variation.
The learned Member has incorrectly found that the Miller’s accepted the variation, whereas they accepted only that the work was done and instructed by them. It was open to the Tribunal to find that it was a variation and if so, to make orders requiring the Millers to pay it. The evidence is that $540, plus 20% margin, was claimed for this tiling.
If leave to appeal was granted for this issue, could the Millers succeed? The tender document at DJ-3 attached to Mr Jover’s statement says in items 20 and 21, ‘ceramic tiles, no allowance made to be supplied by owner’ and ‘ceramic tiler to lay wet area floor and walls to 2.0 m in shower only’ respectively, as noted by the learned Member in paragraph 41 of the reasons. Mr Jover’s evidence was that wet areas are usually understood to be bathroom, laundry and toilet areas. Accordingly, it was open to the Tribunal to allow the amount as a variation in any event.
Although the Tribunal’s reasons disclose an error in recording an accepted variation, there has not been any substantial injustice which requires correction or reconsideration on appeal, because it is reasonable for the Millers to pay for the tiling of the pump room.
Delay Costs: the Millers Assert that in Paragraphs 51 and 52 the Member has Incorrectly Calculated Delays Extending the Completion Date
This issue has been dealt with earlier in these reasons.
Appeal Grounds Relating to the Miller’s Counter-Claim
Roof Pitch
The Miller’s appeal on the grounds that the Tribunal was in error in finding that the roof pitch of the existing house was 29 to 30 degrees, resulting in the dismissal of their claims for rectification costs of $37,638.98 and damages for diminution of value of $52,500.
The Miller’s contend that the Tribunal made a significant and inexplicable error in determining that the roof pitch of the existing house is 29 to 30 degrees. The pool house roof is 30 degrees and, they say, was to match the existing house. They contend that the pitch of the house roof was measured during the hearing at 25 degrees within normal tolerances, when the hearing was removed from the hearing room to the Miller’s house. They further contend that the QBSA Report confirms the measurement of the roof pitch of the existing house.
Lida Build accepts that the roof pitch of the existing house was measured at 25 degrees, with some minor variations, and the pool house roof at 30 degrees with some minor variations on the last day of the hearing when the parties, the Tribunal Member and others attended the site. It disagrees that if the correct measurement had been followed that a finding should have been made in favour of the Millers. It contends that it was not required under the contract to match the roof pitch of the pool house to the existing house.
There is no transcript of what occurred at the house, and a recording was not made. It is also apparent, however, that what occurred there was, in truth, in the nature of an on-site hearing rather than a simple view of the site of the works giving rise to the dispute: evidence was given and, it seems, measurements taken and the like.
There is an obvious difference between a view, and an on-site hearing. As a matter of practice, when a view occurs no evidence is given by any party or other person present. A view is an opportunity, during which the parties and the Member are in attendance, for the Member to be shown items relevant to the proceeding before it. At the Member’s discretion, other persons may also attend. Attempts by persons present to do more than point out the items the Member has indicated he or she will view are entirely inappropriate and Members should warn persons before the view who will be present that if any attempt is made to give evidence during the view that the Member will remove themself from the premises.
Sometimes, a Member may convene an on-site hearing, for part or all of the hearing. When this is done, the proceedings should be recorded and evidence can be taken at the premises.
The reasons discuss the roof pitch issue in paragraphs 56 to 63. The learned Member clearly states in paragraph 57 that the pitch of the roof of the existing house was recently measured, and found to be 29 to 30 degrees. In paragraph 60, the Tribunal found that Lida Build complied with the architectural plans by following the pitch of the existing house. In paragraph 61, the learned Member further found that Lida Build had effectively paid some rectification costs regarding pitching the roof to match the existing house, by withdrawing its claim for the costs of rectifying the fascias to comply with the Building Code of Australia. In paragraph 62, the Tribunal notes that some further rectification work is required at cost of $880. In paragraph 63, the Tribunal stated that because the pitch of the pool house roof matched the existing house roof, the Miller’s claims for rectification costs and diminution in value must both be dismissed.
The Tribunal, in finding that the roof pitch of the existing house was 29 or 30 degrees has made a finding of fact which was not open on the evidence before it. The Tribunal then dismissed the Miller’s claims for rectification and diminution in value because of this finding of fact. This represents a significant error of law, because whether a decision is based on findings of fact which are open on the evidence is a question of law.[30]
[30]Kostas v HIA Insurance Services Pty Ltdt/a Home Owners Warranty (2010) 241 CLR 390.
The Millers submit that Mr Jover gave evidence that he had measured the roof pitch of the existing house at 30 degrees, and then matched the pool house to it. Further, they submit that they provided evidence to the Tribunal of the rectification costs claimed of $37,638.98 and a report from a valuer at Action Property Solutions that the consequent diminution of value in the property is $52,500.
The quotes for rectification were obtained from the Miller’s sons-in-law, and their evidence and submission acknowledges a possible perceived conflict of interest, but observes that Lida Build had the opportunity to respond to this material. The valuation report prepared by a Mr Missingham includes an assessment of loss of value of $62,500, but the Millers concede that $10,000 of this is attributable to defective concreting and tiling by Lida Build. They therefore submit that the diminution in value relating to the roof pitch is some $52,500.
Further, the Millers argue that the unwanted rectification work carried out by Lida Build did not result in compliance with the Building Code of Australia.
Lida Build submits that, even if the Tribunal had addressed the correct measurements in its reasons for decision, this would not have led to a finding in favour of the Millers. In support of these contentions, Lida Build refers to the evidence before the Tribunal that the architectural drawings unusually did not show the roof pitch and said ‘roof to match existing’. Lida Build contends that the requirement under the contract was for the pool house roof to match the colour and profile of the existing house, not the roof pitch, size or dimension. A valuation report of Planet Valuations filed by Lida Build concludes that there has been no diminution in value of the works as a result of the roof pitch variance.
I would allow the Millers’ appeal in relation to this issue. Findings of fact are required about what the contract required regarding roof pitch, and a determination is required about whether, and if so in what amount, the Millers should succeed on their claim for damages for diminution in value or their claim for the costs of rectification. It is appropriate for these facts to be determined by returning the matter to the Tribunal which made the decision for reconsideration.
I would set aside the Tribunal’s order in paragraph 63 dismissing the claims for diminution of value and rectification. I would direct that the Tribunal determine in accordance with the evidence, that the roof pitch of the existing house is 25 degrees and the roof pitch of the pool house is 30 degrees; whether the contract required the roof pitch to match the roof pitch of the existing house; and whether an amount should be awarded on the Millers counter-claim for rectification of the pool house roof or diminution in value.
Damages to Millers’ Property: the Tribunal Erred in Not Allowing or Dealing with the Millers’ Claim for Damages Relating to their Swimming Pool and their Lawn
Swimming Pool
The Millers claimed for the costs of disconnection of the pool filtration units on 25 March 2009 to allow tiling to be done, and reconnection on 27 March 2009 after Lida Build failed to present to prevent decontamination problems of the pool filtration units at a cost of $801.35. They say the Tribunal erred by not dealing with the claim.
Also, the Millers say the Tribunal erred by determining in paragraph 66 that that the invoice discussed in paragraph 65 did not identify an amount of $711 invoiced for the costs of correcting contamination after Lida Build had disconnected the pool filtration system to use power points and then not reconnected it for lengthy periods. Finally, the Millers say the Tribunal erred in paragraphs 68 and 69 in determining that their claim of $445 for a missing timer for the filtration system be dismissed.
Lida Build argues that it is not responsible for these costs, but does not address the question whether the Tribunal erred in making the determinations it did. It submits, however, that it was not the responsibility of Lida Build to maintain the cleanliness of the pool water and further that it had no responsibility for loss or damage given Clause 14.5 of the Contract. Further, in relation to the timer, it argues that Lida Build did not have exclusive possession of the site. Clause 14.5 provides that unless otherwise provided for in the contract, the contractor is not responsible for loss or damage to the owner’s property or for property for which the owner is responsible that is left on the site. Further, it says that there was no evidence about who turned the filtration system off, and when.
The Tribunal was not satisfied that Lida Build was shown to be the cause of the loss, alleged to be $445. It was entitled to make this finding on the basis of the evidence before it, and I am satisfied that no discernible or material error was made by the Tribunal.
The Tribunal did not determine the claim for $801.35. It was referred to in paragraph 49 of Peter Miller’s statement filed in the Tribunal on 5 October 2009. For the reasons discussed earlier regarding other grounds of appeal, a party is entitled to have its claims determined by the Tribunal. In relation to the claim for $711 the Tribunal made an error in determining that the invoice did not identify an amount of $711: the invoice, apart from referring to an item for $1,430, adds up to $711.
In relation to these two claims, however, clause 14.5 is clear. Under the contract between the parties, Lida Build is not responsible for these costs. Therefore, although some mistakes or oversights were identified in the decision, the appeal must fail on these issues.
The Lawn
The Millers appeal on the basis that the Tribunal erred in not allowing a claim for $1,496 for damage to the lawn as a result of Lida Build and its associated contractors and delivery vehicles driving on it.
Lida Build seems to say that, because of clause 14.5, it was not liable for the costs but also that its representative gave evidence that it did not cause the damage to the lawn.
The Tribunal’s reasons for decision (paragraph 67) state that the Tribunal found the claim did not arise from the contract between the parties and must therefore be dismissed. What the learned Member meant by this is not apparent. He did not make a finding about whether Lida Build or its representatives caused the damage to the lawn. It may be that the Tribunal considered that, because of clause 14.5, Lida Build was not liable under the contract for these losses, whether or not it caused the damage to the lawn.
Given that the Tribunal’s reasons are not clear on this point, there may be an error of law. However, even if that is so, the Millers cannot succeed in securing an award of damages for the damage because, again, clause 14.5 of the Contract precludes it. The appeal on this ground must fail.
Late Completion Costs
The Millers appeal on the ground that the Tribunal erred in under-calculating the amount of damages by $2,500, as a result of the error in calculating the revised completion date referred to above.
This issue has been dealt with earlier in these reasons.
Pool equipment door
The Millers appeal on the basis that the Tribunal erred in paragraph 79 of the reasons, which they contend is illogical. Reliance is placed upon document D-2, which the Tribunal found did not form part of the contract.
The Tribunal found that Lida build had provided a door in accordance with the requirements under the contract, and dismissed the Millers’ claim.
No error in the Tribunal’s reasoning is identified.
Claims admitted by Lida Build not included in decision
The Millers appeal on the basis that the Tribunal erred by not allowing claims made by the Millers, and conceded by Lida Build, for shuttering for $3,500; carpenter for fitting door furniture $225.50; paint $139.71; and that the Member erred by under-calculating the minor defects conceded by Lida Build by either $493 according to their application, or $475.50 according to their submissions.
Lida Build accepts that the Tribunal erred in not allowing the amounts for shuttering, fitting and paint totalling $3,865.21. In relation to minor defects, it accepts that the Tribunal erred by under-awarding the minor claims conceded by Lida Build to the extent of $475.50. Further, it submits that the amount allowed by the Tribunal for the rectification of the fascia outside the pool equipment room was incorrect by $1,070. In this regard, Lida Build accepted responsibility for rectification of the fascia at $1500 plus GST, totalling $1950, whereas the Tribunal allowed only $880.
As discussed above, parties are entitled to have their claims determined by the Tribunal. Failure to do so is an error of law. The Tribunal erred in not determining the claims conceded by Lida Build for shuttering, fitting and paint and by under-calculating the minor defects claim to the extent of $475.50. I would allow the appeal in relation to these issues.
Although it is apparent that the Tribunal made an error in calculating the amount allowed for the rectification of the fascia, the orders which should be made regarding the amount allowed may depend upon the orders made by the Tribunal in relation to the Millers’ claims for rectification of the pool house roof and diminution of value. Therefore, I would make no orders about it at this stage other than to set it aside and direct that the Tribunal determine what other orders should be made regarding the amount allowed.
Summary of orders made
The appeals are allowed but only to the extent of the following:
1. On the appeal of Lida Build, the appeal is allowed but only to the following extent:
(a) That the amount allowed for electrical variations of $11302.91 be set aside and the amount of $12433.21 be substituted;
(b) That the decision of the Tribunal about the date for practical completion, delay costs, and late completion damages be set aside and those issues returned to the Tribunal for reconsideration according to law;
(c) That the claim by Lida Build for interest under the contract is referred back to the Tribunal for reconsideration and the Tribunal is directed to hear further evidence to allow it to calculate interest;
(d) That the claim by Lida Build for costs under the contract is referred back to the Tribunal for reconsideration and the Tribunal is directed to hear further evidence to allow it to calculate costs referrable to recovery of monies owing under the contract;
(e) That the claim by Lida Build for costs by way of the filing fee of the application is referred back to the Tribunal for reconsideration and the Tribunal is directed to determine the claim.
2. On the appeal of Susan Miller and Peter Miller, the appeal is allowed but only to the following extent:
(a) (i) That the Tribunal’s orders dismissing the claims for diminution of value and rectification relating to the roof pitch be set aside and that the Tribunal reconsider those claims;
(ii) The Tribunal is directed to determine in accordance with the evidence, that the roof pitch of the existing house is 25 degrees and the roof pitch of the pool house is 30 degrees; whether the contract required the roof pitch to match the roof pitch of the existing house; and whether an amount should be awarded on the Millers counter-claim for rectification of the pool house roof or diminution in value;
(b) That the claims for shuttering of $3500, fitting door furniture of $225.50 and paint of $139.71 are allowed;
(c) That the amount allowed for rectification of minor defects of $792 is set aside and the amount of 1267.50 ($792 plus $475.50) is substituted for it;
(d) That the amount allowed for the rectification of the fascia of $880 is set aside and returned to the Tribunal for reconsideration of this issue when determining the claims specified in 2(a) of these orders;
(e) That the decision of the Tribunal about the date for practical completion, delay costs, and late completion damages be set aside and those issues returned to the Tribunal for reconsideration according to law.
34
11
0